CAAFlog » Court-Martial News

As suspected here, and expected here, the Associated Press reports here that Sergeant Bergdahl pleaded guilty this morning.

Surprisingly, the guilty pleas (a dive) were entered without the benefit of a pretrial agreement (a naked plea). From the AP report:

FORT BRAGG, N.C. (AP) — Army Sgt. Bowe Bergdahl, a Taliban captive for five years after abandoning his post in Afghanistan, pleaded guilty Monday to desertion and misbehavior-before-the-enemy charges that could put him in prison for life.

“I understand that leaving was against the law,” said Bergdahl, whose decision to walk off his remote post in Afghanistan in 2009 prompted intense search and recovery missions, during which some of his comrades were seriously wounded.

Bergdahl, 31, is accused of endangering his comrades by abandoning his post without authorization. He told a general after his release from five years in enemy hands that he did it with the intention of reaching other commanders and drawing attention to what he saw as problems with his unit.

The prosecution made no agreement to limit Bergdahl’s punishment in return for the soldier’s guilty pleas. The judge, Army Col. Judge Jeffery R. Nance, reminded Bergdahl that he could spend the rest of his life in prison, and asked him one last time if he wanted to plead guilty. “Yes,” Bergdahl replied, and the judge accepted the pleas.

(emphasis added).

Story here.

Army Sgt. Bowe Bergdahl is expected to plead guilty soon to desertion and misbehavior before the enemy rather than face trial for leaving his Afghanistan post.

That’s according to two individuals with knowledge of the case.

They tell The Associated Press that Bergdahl will submit the plea later this month and sentencing will start Oct. 23. The individuals weren’t authorized to discuss the case and demanded anonymity.

Two months ago I noted that Bergdahl elected trial by a military judge alone, and I commented that the choice was a “preface to a guilty plea.”

Thanks to our reader for the tip.

In a lengthy story published in the Washington Post yesterday and available here, reporter Craig Whitlock writes about the way the Air Force handled sexual misconduct allegations made by a female civilian employee against her military supervisor, Colonel Ronald Jobo.

The story outlines cringe-worthy sexual harassment of the civilian employee by the Colonel, eventually leading to his receipt of nonjudicial punishment and transfer to the retired list at a reduced rank. It’s hard to gauge the appropriateness of this disposition without a comprehensive review of the facts and circumstances. But the story doesn’t offer that to the reader. Rather, it advances the tired narrative that the military is somehow incapable of addressing sexual misconduct within the ranks:

In their report, the investigators compiled extensive evidence that the colonel, Ronald S. Jobo, had committed abusive sexual contact against the woman, a civilian in her 30s. Under military law, the charge would have automatically resulted in a court-martial, a proceeding open to the public. The crime carried a sentence of up to seven years in prison and a requirement to register as a sex offender.

The decision on what to do next rested with a three-star general 600 miles away at Wright-Patterson Air Force Base in Ohio. In the military-justice system, commanders — not uniformed prosecutors — have the power to dictate how and whether criminal cases should be pursued.

In March 2016, Lt. Gen. John F. Thompson, the senior officer in Jobo’s chain of command, decided against charging Jobo with abusive sexual contact, or any crime at all. Instead, Thompson imposed what the military calls non­judicial punishment, or discipline for minor ­offenses.

Jobo was forced to retire and demoted one rank, to lieutenant colonel. Because the military keeps most disciplinary actions secret, the case was hidden from public view.

There would be no trial, no publicity and no public record — the same for thousands of other sexual assault investigations each year in the armed forces.

An examination of the Jobo investigation, based in part on an internal 400-page law enforcement case file obtained by The Washington Post, casts doubt on the military’s promises to crack down on sexual misconduct and hold commanders accountable for how they administer justice.

This reporting suffers from a few serious flaws.

Read more »

We’ve been watching the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Prior posts are herehere, here, and here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

Rowan Scarborough of The Washington Times reports here on that fact-finding hearing:

A retired Navy admiral who accused the service’s top lawyers of improperly intervening in a SEAL’s sexual assault case made his charge to a judge this week at a special hearing ordered by the military’s highest court.

Retired Rear Adm. Patrick J. Lorge testified in a Washington Navy Yard courtroom that a lawyer admiral — Vice Adm. James Crawford, now the judge advocate general of the Navy — urged him not to overturn the conviction of Senior Chief Petty Officer Keith E. Barry.

. . .

Mr. Lorge testified that Adm. Crawford told him that overriding the military judge’s guilty verdict would harm the Navy politically. On the stand, Adm. Crawford acknowledged he spoke with Mr. Lorge but denied he did anything improper.

 

Here is a link to Army Times coverage of the Harvard Kennedy School disinviting Chelsea Manning from the list of 2018 Fellows after a severe case of public backlash. Here is the school’s statement, which talks about the “extent to which [a Fellow’s] conduct fulfills the values of public service to which we aspire.”

So Chelsea (former Bradley) Manning has a fellowship at Harvard Kennedy School’s Institute of Politics. Release here. Prompting the resignation of at least one other fellow, here. H/t JK

An Article 32 preliminary hearing was held over the weekend to consider allegations of rape of a child by retired Army Major General James J. Grazioplene. According to this associated press report:

The Washington Post obtained charging documents under the Freedom of Information Act that show Grazioplene is accused of committing rape on six occasions between 1983 and 1989 while stationed in the United States and Germany.

Earlier this year, in this post, I discussed the NMCCA’s opinion in United States v. Dinger, 76 M.J. 552, No. 201600108 (N.M. Ct. Crim. App. Mar. 28, 2017), in which a three-judge panel of that court affirmed that military retirement isn’t really retirement, it’s merely a change in duty status, and those who retire from active duty and receive retired pay remain subject to the UCMJ.

But the Grazioplene case raises a different issue: whether the prosecution is barred by the statute of limitations. Article 43 contains a broad, five-year statute of limitations, and the exception for child abuse offenses wasn’t added until 2003. In United States v. Lopez de Victoria, 66 M.J. 67, 74 (C.A.A.F. 2008), CAAF held that the change was prospective only:

Considering the lack of any indication of congressional intent to apply the 2003 amendment retrospectively to cases such as this, the general presumption against retrospective legislation in the absence of such an indication and the general presumption of liberal construction of criminal statutes of limitation in favor of repose, we decline to extend the reach of the 2003 amendment to Article 43, UCMJ, to cases which arose prior to the amendment of the statute.

Update / Correction: Except that in 1986 Congress amended Article 43 to eliminate any statute of limitations for “any offense punishable by death,” and rape was at the time a capital offense.

News reports about the Grazioplene case (including this military.com story and this Washington Post story) provide little additional detail about the facts of the case.

In 2009 then-Private First Class Bergdahl walked away from his combat outpost in Patika Province, Afghanistan. He was captured by the Taliban and held for nearly five years. He was recovered in a May 2014 trade for five Guantanamo Bay detainees that a report by the House Armed Services Committee found violated several laws. Ten months later, in March of 2015, now-Sergeant Bergdahl (who was promoted while in captivity as if he were a prisoner of war) was charged with desertion and misbehavior offenses, his case was referred for trial by general court-martial, and last week Bergdahl elected to be tried by a court-martial composed of a military judge alone.

As the case progressed some wondered why Bergdahl is being prosecuted after nearly five years of captivity in the hands of insurgents. The facts of his capture are relatively undisputed; in a moment of severe naivete (or maybe narcissism) Bergdahl walked away from his combat outpost and into the Afghan wilderness. The subsequent half-decade of maltreatment he suffered is undoubtedly a harsh price to pay for his terrible decision. Nevertheless – and despite the recommendation of the Article 32 preliminary hearing officer that Bergdahl face a lesser, special court-martial not authorized to adjudge a punitive discharge – Bergdahl will soon be tried by a general court-martial where he faces the possibility of a dishonorable discharge and confinement for as long as life without the possibility of parole.

Bergdahl’s decision to be tried by a military judge alone rather than a panel of members came after a year of litigation about comments made by President Trump during the campaign (as well as comments by others) that Bergdahl’s defense counsel claimed make it impossible for Bergdahl to receive a fair trial. A judge-alone trial likely waives that issue, and almost certainly cures it. It’s a surprising gift to the prosecution in a case with seemingly-overwhelming evidence, including that Bergdahl probably confessed to the desertion offense, and his post-recovery statements to film producer Mark Boal are probably a confession to the misbehavior offense as well.

One possible rationale for the decision to elect trial by a military judge alone is that a military judge will give Bergdahl credit for his time in captivity, at least by considering that time as a significant mitigating factor. This, of course, assumes that Bergdahl is guilty. But assuming that he is guilty of the desertion and misbehavior (or either) offenses that led to his capture, it’s not at all clear that his captivity mitigates his misconduct. Rather, I think there’s a stronger argument that Bergdahl’s captivity is a matter in aggravation.

Read more »

After so many motions, writ-petitions, and breathless claims that Army Sergeant Bergdahl can’t get a fair trial by court-martial on the charges of desertion with the intent to shirk important service and avoid hazardous duty in violation of Article 85(a)(2) and misbehavior before the enemy in violation of Article 99 for leaving his combat outpost in Patika Province, Afghanistan (leading to his capture by the Taliban and captivity for nearly five years), Bergdahl has elected to be tried by a court-martial composed of a military judge alone:
(source).

Here is Washington Post coverage (alternate link) of an $8.5 million jury award in a defamation case brought by retired Army Col. David Riggins against Susan Shannon who, in 2013, alleged that Riggins raped her in 1986 when they were both cadets at the United States Military Academy (West Point). The allegation was investigated by Army CID, and Riggins was subsequently removed from the promotion list for brigadier general.

After Shannon made her claim, Riggins told investigators that he had a consensual sexual relationship with her while at the Academy but he denied assaulting her:

The CID also contacted Riggins. A report in court records shows that Riggins described a consensual sexual encounter with Shannon after a Halloween party in 1983, and a short relationship with an amicable breakup. Riggins said he had no significant contact with her in 1986. In Washington state, Shannon told investigators there was no sex or relationship in 1983, only a rape after Riggins saw her staggering out of a pedestrian tunnel on campus in the spring of 1986. She claimed Riggins offered her a ride in his car, and that she had no memory of the actual assault, although she said Riggins “smugly admitted he did indeed rape” Shannon, according to a Fairfax court filing.

Riggins sued Shannon in Virginia, asserting:

that every aspect of her rape claim on the West Point campus was “provably false,” and that she wrote two blog posts and a Facebook post “to intentionally derail [his] promotion” to brigadier general. During a six-day trial that ended Aug. 1, a jury in Fairfax County, Va., heard from both Riggins and Shannon at length. And after 2½ hours of deliberation, they sided emphatically with Riggins, awarding him $8.4 million in damages, an extraordinary amount for a defamation case between two private citizens. The jury ordered Shannon to pay $3.4 million in compensatory damages for injury to his reputation and lost wages, and $5 million in punitive damages, “to make sure nothing like this will ever happen again,” according to one of the jurors.

A juror told the Post:

“Honestly,” said juror Marshall Reinsdorf, “we thought who was telling the truth was too obvious to be discussing. We held a vote, and everybody believed the colonel. The only argument was how big the damages were going to be.” Of the four women and three men on the jury, two other jurors declined to comment, two jurors did not return messages and two could not be reached.

Army Staff Sergeant (SSG) Robert Bales pleaded guilty at a general court-martial in 2013 to the murder of 16 Afghan civilians in 2012. The case had been referred capital, and his plea avoided the possibility of the death sentence. Bales received the maximum possible sentence of life without the possibility of parole.

In 2015, GQ magazine published this story about Bales based largely on post-conviction interviews of Bales that, according to the story, Bales hopes “will humanize him, and he hopes that one day in the hard-to-imagine future, as the wars fade from memory, someone will deem his sentence to be excessive, take mercy on him, and grant him a measure of clemency.”

The Army CCA will hear oral argument in Bales appeal tomorrow. Two issues are before the court:

I. [Whether Bales] is entitled to a new sentencing hearing because of the Government’s Brady violation, the Government’s fraud on the court-martial and the military judge’s exclusion of Mullah Baraan’s ties to IED evidence.

II. [Whether] the military judge erred by failing to hold a Kastigar hearing to determine the extent the military judge’s mistaken disclosure of Fifth Amendment protected information affected the sentencing hearing.

Both of these issues look to be wholly focused on Bales’ sentence, and neither appear to challenge his plea. The second issue probably involves the military judge’s erroneous disclosure of an unredacted copy of Bales’ R.C.M. 706 (sanity board) evaluation to the prosecution (noted here).

The first issue may also include a challenge to the safety of the widely-used anti-malaria drug mefloquine. According to this Seattle Times report published last week:

Defense attorneys are expected to argue that while on a 2003-2004 tour in Iraq, and possibly in Afghanistan in 2012, Bales took the antimalarial drug mefloquine, according to John Henry Browne, a Seattle attorney who has assisted in the soldier’s defense.

In July 2013, the FDA issued its strictest warning about mefloquine, noting the potential for long-term neurological damage and serious psychiatric side effects. The defense team did not raise Bales’ possible use of the drug during sentencing proceedings the next month.

Defense attorneys now hope the drug issue can persuade a three-judge panel to lessen his sentence.

In a series of posts (here, here, and here) in May and June we discussed the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, the NMCCA affirmed in an opinion available here, and CAAF summarily affirmed on April 27, 2017. But after CAAF acted, the Admiral signed an affidavit alleging that he really wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to do so because it would be bad public relations for the Navy and hurt Lorge’s career.

That allegation prompted CAAF to reverse its summary affirmation and grant review of “whether senior civilian and military leaders exerted unlawful command influence on the convening authority.” CAAF also ordered post-trial fact-finding.

That fact-finding is underway. According to this report published by the San Diego Union-Tribune, Vice Admiral Crawford (the current JAG) gave a deposition this week and, according to Barry’s civilian defense counsel, “Crawford has confirmed that he discussed the case with Lorge. Crawford also disclosed the existence of documents and messages exchanged at the highest levels of the Navy about Barry.”

But the report also raises a new allegation: that Vice Adm. Crawford pushed for a prosecution in a different case involving the 2016 drowning death of a special operations candidate, Seaman James Derek Lovelace. Barry was also a member of the special operations community, but was not (best I can tell) involved in any way in the death of Lovelace.

The Union-Tribute reports that:

Word that the Union-Tribune had received records in both the Barry and Lovelace cases triggered numerous, sometimes frantic, calls from top Navy officials nationwide on Monday and Tuesday, with flag officers or their representatives inquiring into Crawford’s involvement in both matters.

It’s certainly not unusual for a JAG or other senior military attorneys to get involved in serious cases, to form opinions about whether prosecution is warranted, and to take action consistent with their opinions. Article 34, in fact, requires them to do precisely that. The emerging claim from the Barry and Lovelace cases, however, seems to be that Vice Adm. Crawford has – and acts on – a pro-prosecution bias.

Paradoxically, at the end of the Union-Tribune article that claim is offered as a justification to give lawyers more power in the military justice system:

Eugene R. Fidell, the military law instructor at Yale Law School, said both cases possibly linked to Crawford were very unusual but pointed out the need for broader reforms to the way the armed forces dispense justice.

“These cases illustrate that Congress needs to get serious about the military justice system and turn it from an 18th century system into one fit for the 21st century,” said Fidell. “Military decisions on who gets prosecuted, and for what, are based on a system that was used by King George III. Until that changes, you’ll continue to see controversies like these.”

Fidell has long advocated for lawmakers to strip commanders of the power to decide who is prosecuted, to pick jurors and to vacate verdicts and sentences, vesting charging authority instead with senior attorneys independent of the chain of command and jury selection with an outside and impartial commissioner.

In this post I noted a May 12, 2017, news report about the case of Senior Chief Barry, U.S. Navy, who was convicted of one specification of sexual assault in violation of Article 120, and sentenced to confinement for three years and a dishonorable discharge. Mike posted a follow-up here.

The convening authority – Rear Admiral Patrick J. Lorge (now retired) – approved the findings and sentence, and the NMCCA affirmed in an opinion available here. CAAF summarily affirmed on April 27, 2017.

After CAAF acted, the Admiral signed an affidavit alleging that he wanted to disapprove the finding of guilty but the then-Judge Advocate General of the Navy and her deputy (the current JAG) persuaded him not to exonerate the sailor because it would be bad public relations for the Navy and hurt Lorge’s career.

Yesterday – in an order available here – CAAF vacated its decision and ordered a factfinding hearing:

That the petition for reconsideration is granted; this Court’s order of April 27, 2017, is vacated; and the petition for grant of review is granted on the following issue:

WHETHER SENIOR CIVILIAN AND MILITARY LEADERS EXERTED UNLAWFUL COMMAND INFLUENCE ON THE CONVENING AUTHORITY.

In addition, the motion to appoint a special master is denied; the motions to supplement the record are granted; the motion for oral argument is denied; and the motion to remand for new post-trial processing is denied.

The record of trial is returned to the Judge Advocate General of the Navy for remand to a convening authority other than the one who convened the court-martial concerned and one who is at a higher echelon of command. This convening authority shall order a factfinding hearing pursuant to DuBay. The presiding officer at this hearing shall be a military judge from an armed force other than the United States Navy or United States Marine Corps. See Rule for Court-Martial 503(b)(3). This military judge shall inquire fully and make findings of fact and conclusions of law related to the alleged unlawful command influence matter underlying the granted issue. At the conclusion of the DuBay hearing, the military judge will return the record directly to this Court for further review of the granted issue under Article 67, Uniform Code of Military Justice, 10 U.S.C. § 867 (2012).

One noteworthy part of CAAF’s order is that it does not permit disapproval of the conviction now if the DuBay were deemed impracticable. Absent such authorization, the conviction will stand unless CAAF finds a reason to reverse it. And the Admiral will testify if called (or face potentially-severe consequences), as he is still subject to the UCMJ.

Here is a copy of a letter dated April 26, 2017, in which the Commanding Officer, Navy and Marine Corps Public Health Center, reported three false positive results for methamphetamine at the Navy Drug Screening Laboratory, Great Lakes (NDSL-GL):

On 13 April 2017. NDSL-GL discovered a specimen was incorrectly reported positive for methamphetamine on 11 April 2017. During confirmatory testing it was determined that the false positive specimen was co-processed with a batch rejected due to cross-contamination generated from a specimen that contained a very high methamphetamine concentration. As a result. a retest was conducted that revealed no evidence of methamphetamine in the service member’s urine. The positive report was withdrawn and the submitting command notified of the error.

Sadly, this wasn’t an isolated problem. An investigation revealed:

two additional contaminated specimens were identified: one was not reported as positive due to a subsequent negative intermediate screening result, and the second was reported on 7 June 2016 for an Army Reserve member. The reported result was discovered on 22 April 2017. The positive report was withdrawn and the submitting command and the Army Drug Testing Program Office were notified of the false positive report. The Service Member had not yet been separated.

Here is Navy Times coverage of the affidavit submitted by retired Rear Admiral  Patrick J. Lorg in the sexual assault case of Senior Chief Special Warfare Operator (SEAL) Keith Barry.  Here is Zach’s prior coverage from the Washington Times.  Here is a link to the NMCCA opinion in the case.